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An
“expungement” is the deletion of a person’s entire criminal conviction record
from any court, police record, or criminal justice agency. Different U.S. states
take different approaches to expungement, but in general if the court expunges
your criminal record, then within the context of the criminal justice system, you
are considered to never have committed a crime at all.

In the
immigration context, it’s a different matter. Though expungement may seems like
a blessing, given that a criminal conviction can prevent a foreign national
from entering the United States or cause a foreign national to be deported from
the United States, it doesn’t necessarily work the way you’d expect. For
immigration purposes a criminal conviction will always exist, no matter whether
a court expunges your record or not.

That
said, even if you do have a criminal record – expunged or not expunged – you
may still be able to immigrate to the United States. It depends on such
factors as the facts or your case, the nature of the crime, and the sentence.

Effect of
Expungement on Coming to the United States (“Inadmissibility”)

If you
have been convicted of a crime in either your home country or the U.S., you may be “inadmissible” to the United States.
Being inadmissible means that even if you qualify for a visa or green card,
immigration officials can still refuse to let you enter the country because of
some condition in your past. Even if your criminal record is expunged, you may
still be found inadmissible because of your conviction.

However,
immigration law provides various “waivers” of inadmissibility. If you apply for
and are granted a waiver, then you will be allowed to enter the U.S. notwithstanding
your criminal conviction.

Nonimmigrant
Waivers

To obtain
a nonimmigrant waiver (that is, a waiver that allows you to obtain a
nonimmigrant visa such as a B visa or an H-1B visa to enter the U.S.), you must
prove to the U.S. government that your entry would not threaten the country or
its citizens. To do so, you must file a waiver application that addresses the
following three criteria:

1. any
risk of harm to you would pose to the U.S. society

2. the
seriousness of your conviction(s)

3. your
reasons for wishing to enter the United States.

The
Board of Immigration Appeals (B.I.A.) outlined these criteria in the
immigration case Matter of Hranka, so the
nonimmigrant waiver is sometimes referred to as the Hranka waiver. The U.S.
consulate in your home country can provide you with detailed information on how
to file the Hranka waiver
application, and typically you file it with that consulate. If the consulate
recommends that the U.S.
government grant the waiver, the consulate will forward your application to the
Admissibility Review Office (ARO). If the ARO grants your waiver, the consulate
will issue your visa and you can enter the United States.

Immigrant
Waivers

You will
also need a waiver to enter the U.S. if you are immigrating (obtaining a green
card or immigrant visa). The immigrant waiver is called an I-601 waiver. Not
just anyone can apply for an I-601 waiver. To apply, the applicant must have a
“qualifying relative,” which means a U.S. citizen or lawful permanent resident
spouse, parent, or child (the child must be both unmarried and under the age of
21 to be a qualifying relative).

In
addition to having a qualifying relative, the applicant must show that the
qualifying relative would suffer extreme hardship if the U.S. refused to let
the applicant enter the country.

Currently,
an applicant files an I-601 waiver application at a U.S.consulate abroad.
However, the procedures for filing an I-601 waiver are currently undergoing
drastic revision, which will ultimately allow some applicants to file for these
waivers from inside the United
States. These changes have not been fully
implemented yet and the I-601 process is unclear right now as the government
prepares to transition from processing waivers abroad to processing waivers in
the country. It is highly recommended you consult an immigration attorney
before filing an I-601 waiver application.

Effect of Expungement on Rights to Stay in the United States

If you
are convicted of a crime while you are lawfully in the U.S., the
government may deport you back to your home country.

Deportation
can happen to two types of foreign nationals:

foreign nationals who are in the U.S. with a nonimmigrant visa
(such as a B visa or an H-1B visa) and

foreign nationals who have their green cards (lawful permanent
residents).

(Of
course, deportation can also happen to foreign nationals who are in the country
illegally, whether they’ve been convicted of a crime or not.)

First,
if you commit a crime while in the U.S. with a nonimmigrant visa, the
government takes the view that you have violated the conditions of your visa
and should be deported. It may be possible to avoid deportation, but you must
contact a skilled immigration attorney specializing in criminal convictions in
order to remain in the country.

Second,
if you have a green card, committing a crime can result in the loss of your
green card and deportation (removal). It may be possible to avoid deportation,
but anyone in this situation should contact an immigration attorney who can
assist with this serious issue.